Tuesday, 12 November 2013

Hard cases...

...make bad law, as the saying goes. However (I suspect you could see that word coming), this case is a perfect example of why we need the amendment to the Human Rights Act that I have been saying is needed for some time now.

It seems that Mr Jumaa Kater Saleh arrived in this country in 2004 as an asylum seeker, aged 16. His asylum claim was refused, but where the claimant is a child we allow them to remain here until 18. At the age of 18 he (naturally) made a further application to stay here, which was being considered when he was arrested for sexual offences. He was convicted on specimen charges of sexual activity with a 13-year-old girl. It seems that the three victims, described as"far from mature for their age" were lured to a house and assaulted by Saleh and three others. Even at its face this is a disturbing crime, but I cannot help but wonder whether anything is concealed by the fact that he was convicted on a specimen charge that was (perhaps) straightforward to prove and required little by way of traumatic experiences in Court for the witnesses?

Anyway, he served his sentence and was then set to be deported back to Darfur... except that he claimed that this would be in breach of his human rights as "he would face inhuman and degrading treatment in Sudan, in breach of Article 3 of the European Convention on Human Rights". On that basis, he could not be deported. So he was held in an immigration detention centre while the Home Office tried to work out what to do with him; the Court has just ruled that he cannot be held indefinitely and declared that he is entitled to compensation for being held beyond what was reasonably necessary.

The Telegraph is up in arms because we are going to have to compensate a foreign paedophile. Once again, the media spectacularly misses the point. Of course we have to compensate him; if our civil servants are incompetent enough to hold someone illegally, then compensation will be due regardless of how unpleasant the individual is. There are two much more glaring problems leaping out of this case than the simplistic "Arrrgghhh immigrant paedo money waste!!!" headline that the Telegraph has grabbed.

First... his original asylum application was refused. In other words, it was decided that he would not face persecution if sent home. Then, his Human Rights application was successful, on the grounds that he would face persecution if sent home. Someone needs to think about that.

Second, and this is the point I have been making for some time, his argument that being sent back to Darfur would breach his human rights was made under Article 3 of the European Convention on Human Rights, that "he would face inhuman and degrading treatment in Sudan". Inhuman and degrading treatment... in other words, treatment akin to (say) a sexually immature 13-year-old being dragged of the street into a strange house and being sexually assaulted by four men? Is it not an utter and rank hypocrisy to resist being sent to your own country on the grounds that, once there, you might be subject to treatment of the same class as you did actually inflict on a national of the country that accommodated you?

It isn't a huge change to the Human Rights Act that we need. Just a little one. Just one that says you can't use a human rights defence to protect you from the consequences of your own denial of the same human right to another.

5 comments:

Your knowledge of the human rights act is deficient. As much as I agree with you the UK's act is a consequence of being a member of the ECHR and we cannot quit that unless we quit the EU because although ECHR is not part of the EU it is a condition of membership of the EU that we are a member of the ECHR. It should be noted that those politicians who know about this fact always demand that we should change the the UK human rights act but know full well that we cannot. Therefore like so much that politicians spout it is totally meaningless and only said to attract votes.

I'll agree, it's not my specialist subject. I did know, however, that the UK Act merely incorporates the ECHR into UK law so that it is enforceable directly in UK Courts rather than requiring an appeal to the European Court. I skirted over the implementation and only discussed the principle.

That said, leaving the EU, leaving the ECHR, and establishing a British constitution that incorporated the essential elements of the ECHR together with other basic elements of English & Scots law would suit me just fine, in principle. But that is a larger issue, although movement on larger issues such as that are often triggered by an accumulation of otherwise irresolvable smaller issues such as this.

But I'm sure that we have the legal skills to find a way to do this. The crucial thing about this idea is that we would not be removing any Convention rights, we would only be adding a procedural principle based in fundamental concepts of equity. I'll admit, I don't know how that would work in detail. But I'm sure it could be done.

And if "Europe" requires us to sanction hypocrisy, well, better that was openly admitted than brushed under the carpet.

I do not believe that there is anyway short of leaving the EU and ECHR that can circumvent the problem of removing undesirable Johnny foreigners from UK shores. My solution would be to leave both. As for hypocrisy the ECHR is made up of about 40 odd European countries some of which have appalling human rights records yet their judges are allowed to pontificate on matters that effect countries that do not like the UK. To make matters worse what is done in our name by both bodies is done with little or no regard to the wishes of the citizens of the member states but shoved down our throats as being in our best interests that being decided of course by politicians and bureaucrats.

I should add that the ECHR and the ECJ are not quite the same thing. The ECHR is the major fly in the ointment the ECJ is more responsible for upholding EU law not necessarily human rights although sometimes when it is considered to infringe EU law.

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Mild-mannered Patent Attorney from the South East of the United Kingdom, with distinctly hedgehoggish tendencies.
Known online as "patently", and prone to spouting rubbish. Hence, Patently Rubbish.
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